Ruth Bader Ginsburg, Hero

I am glad that John Roberts, the Chief Justice, voted to uphold almost all of the Affordable Care Act. But the stance of humble gratitude toward Roberts that’s been assumed by many in the past day is beginning to be a bit much. This is especially true since the real hero of the day is Ruth Bader Ginsburg.

On the front page of the late edition of the Times Friday morning, there were four stories on the Supreme Court decision. One talked about Roberts’s “exquisite delicacy,” and how he “considers himself the custodian of the Supreme Court’s prestige, authority and legitimacy.” Ginsburg’s name didn’t appear before the jump in any of them; she only ever appeared in one, seventeen paragraphs in. Her picture and surname were in the infographic—all the Justices were there. There were four pull-quotes: two from Roberts, and two from the joint dissent from Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy.

And yet Ginsburg wrote what would have been the dissent—and a strong one—if Roberts had voted with the four conservatives to throw out the entire health-care law. Instead, her opinion concurred with Roberts when he said that the individual mandate was within Congress’s power to tax—this was the Constitutional loophole he found—but rejected his view that it wasn’t valid under the Commerce Clause, which gives Congress the power to regulate commerce. Ginsburg wasn’t gentle. She wrote that Roberts’s analysis was “rigid,” “crabbed,” and “stunningly retrogressive,” that it “finds no home in the text of the Constitution or our decisions” and made “scant sense.” There was also a mesmerizing dissection of the broccoli question. (Adam Gopnik has more on that, and Alex Ross has her favorite records.) Roberts’s view of the Commerce Clause, she wrote,

harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it…. It is a reading that should not have staying power.

“Staying power” is something that Ginsburg has. As Jeffrey Toobin says in this week’s Political Scene podcast, “Ruth Bader Ginsburg is seventy-nine. She is about five feet tall, eighty pounds, she has had every disease known to humanity. She is as tough as nails.” She made her way at a time when you could have a legal education from Harvard and Columbia and still be turned down for a job because you were a woman. She is not as loud or colorfully charismatic as Scalia—who is?—but neither does she seem to have learned to give up. (Those wondering about the liberal future of the Court might note that, on a point related to Medicaid expansion, Ginsburg was joined by only one Justice: Sonia Sotomayor.) We don’t know what happened inside the Court, or why Roberts voted the way he did. But by writing a scathing opinion, Ginsburg may at least have done him the favor of showing him what he might have looked like if he had signed on with Scalia: a political opportunist, and almost a fool.

She wasn’t the only one exerting that pressure, of course. But she is the leader of the liberal wing and the one who articulated what would have been the Court’s internal reproach. She was also on the winning side. Roberts couldn’t bring himself to compromise on the Commerce Clause; he may have genuine, heartfelt feelings about the power to tax. But he also seems, as my colleague Hendrik Hertzberg wrote, to have thought about his own future, and whether the power he expects to have in twenty years would be diminished if the Court were discredited. He has not become a less political Justice, only one whose politics are subtler, more personal, and more institutional. (Roberts is also benefiting from an unfortunate tendency on the part of liberals to be overcome by gratitude, and even deeply moved, when a conservative does one decent thing.) And, as I wrote yesterday, Roberts may be getting praise now at the cost of some ugly Commerce Clause fights to come.

Credit, again, is due; just not bedazzlement. There was talk, after the decision, that Roberts had “saved” the President and “rescued” the court’s liberals, and one can reckon it that way. Again, at this point we don’t know what decided his vote. But must we assume that Roberts was the one who came to the aid of judicial damsels in distress and their trusty squire, Stephen Breyer? Or did he find himself eyeball to eyeball with the senior woman on the court, and blink? Maybe Ginsburg is the one who saved Roberts.

Photograph by Pablo Martinez Monsivais/Corbis.

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